Director of Public Prosecutions v Emmerson

[2018] VCC 1200

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02518

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEREK EMMERSON

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2018
DATE OF SENTENCE:	3 August 2018
CASE MAY BE CITED AS:	DPP v Emmerson
MEDIUM NEUTRAL CITATION:	[2018] VCC 1200

REASONS FOR SENTENCE
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Subject:Trial - sentencing

Catchwords:            Rape - sexual assault by compelling sexual touching

Legislation Cited:     Sentencing Act 1991, Sex Offenders Registration Act 2004

Cases Cited:            

Sentence:5 years and 6 months’ imprisonment, 4 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Mr P. Stefanovic	Emma Turnbull Lawyers

HIS HONOUR:

1Derek Emmerson, you have been found guilty by jury verdict of three charges of rape and one charge of sexual assault by compelling sexual touching. 

-    Rape carries a maximum penalty of 25 years' imprisonment. 

-    Sexual assault by compelling sexual touching carries a maximum penalty of 10 years' imprisonment.

2You are currently 29 years of age, having been born on 17 April 1989.  At the time of the offending you were aged 27. 

3You do have a prior criminal history, to which I will refer in more detail shortly.

4The circumstances of the offending can be summarised as follows. 

5In the early hours of Sunday 19 February 2017 the victim in this matter was digitally raped by you twice and raped penis/vagina once.  You also forced the victim to touch your penis.

6At the time of the offending the victim was 17 years old and residing at a care residence in Ballarat. 

7You and a friend had been drinking during the day.  At about 9 pm you both arrived at the victim's home.  The victim and her female housemate conversed with you and your friend and the four of you jointly visited the home of another friend at Delacombe.

8At about 11.30 pm the four of you returned to the victim's home.  You had a cigarette outside.  The victim said she was going to bed and told her housemate to say goodbye to you and your friend for her. 

9While the victim was getting ready for bed you entered her room and made physical advances, which were rejected by her.  You were told to leave and after some reluctance you left the room.

10The victim attempted to leave the premises by taxi to get away, but did not have the fare and was rejected by the driver.  She went back inside to her room and found that her housemate and your friend were in her bed, which was a mattress on the floor. 

11It was arranged that the victim and you would sleep on an airbed in the same room.

12The victim states that while lying on the airbed at various times you were touching and trying to kiss her, despite her asking you to stop.  You persisted despite further protests and digitally penetrated her.  You were holding her arms together so she could not push you off.  This conduct is represented by Charge 1 of rape.

13At one stage whilst you were on the airbed, you forcibly placed the victim's hand on your erect penis.  This conduct is represented by Charge 2 of compelling sexual touching.

14The airbed subsequently deflated and you and the victim moved to the mattress with the others. 

15Whilst on the mattress you again began touching the victim despite her telling you to stop.  You pulled down her shorts and again digitally penetrated her.  This conduct is represented by Charge 3 of rape.

16Shortly afterwards you penetrated her with your penis, proceeding to ejaculation.  You were not wearing a condom.  This conduct is represented by Charge 4 of rape.

17Shortly afterwards the victim left and went outside.  She texted and called her friends who subsequently collected her.  She complained that you had forcibly touched her and later told them that she had been raped.

18Not long after the victim had left, you made the unprompted remark to her housemate that, "I don't know why she left, we had sex and she was fine". 

19When interviewed by police you stated that you could not recall anything from the night due to intoxication.  You said you had no memory at all of what happened during the night and could neither confirm nor deny the allegations.

20A statement from the victim was tendered on the plea.  In it the victim expresses how the offending has changed her life.  Her reactions have included high anxiety, self-harm, isolation, nightmares, general unhappiness and suicidal thoughts.  She continues to feel vulnerable and felt forced to move interstate.

21I now turn to your personal circumstances. 

22As I noted earlier you are now aged 29, you were 27 when the current offending occurred and you do have a criminal record.

23Your criminal record commenced in 2010 when you were convicted and fined for attempt to commit an indictable offence and criminal damage. 

24In 2011 you received a community-based order for various offences, including assault with a weapon, intentionally damage property, theft, arson and drugs. 

25In 2012 you were sentenced to three months' imprisonment as part of an aggregate sentence for intentionally destroy property and theft offences and failure to comply with the 2011 community-based order.  The sentence of imprisonment was wholly suspended for a period of 18 months.

26In 2016, having breached the suspended sentence imposed in 2012 by further offending including burglary, theft and fail to answer bail, you were convicted and sentenced to serve a 12-month community correction order with a condition to perform 100 hours of unpaid community work.  No order was made on the breach of the suspended sentence. 

27The current offending occurred four days after the expiry of the 2016 community correction order.

28In essence, you have demonstrated repeated offending over the past eight years and despite being given opportunities to reform you have breached the 2011 and 2012 non-custodial sentences by further offending and have seriously offended again on the current charges just four days after the expiration of the further community correction order imposed in 2016.

29You recall an unhappy childhood.  You were raised by your mother and only met your father 18 months ago and have had little contact subsequently.  Your mother's partners were female and you felt that you never got along with them.  At times your mother sent you to live with other family members. 

30You enjoyed a close relationship with your grandparents and at the age of 17 you moved to Ballarat to reside with them.  Unfortunately your grandmother died in 2014 and your grandfather the following year.  You were approximately 25 and have described their passing as a huge loss for you.

31You have a seven-year-old son from a partnership which last for about
18 months.  You have not seen him since 2016 because of custody issues.

32You completed Year 10 at school, leaving at age 16.  You started working at abattoirs as a labourer and have been employed for most of your adulthood.  Your most recent work involved building steel houseframes.

33In recent years you have experienced both physical and mental health issues.  In 2015 you suffered serious injuries after falling or being knocked through a window.  Physically, you experience back pain and have been treated for a back pain condition, spondylolisthesis.  You also have received prescribed medication for panic attacks, depression and anxiety.

34You also have a history of substance abuse.  Whilst you have occasionally used illicit substances including cannabis, ecstasy and amphetamine, alcohol has been your primary substance of abuse.  You have frankly admitted that drinking has been your problem and that alcohol has got you into lots of fights and has damaged relationships and friendships.

35Mr Ian Mackinnon, consultant psychologist, has assessed you as currently suffering from longstanding Depressed Mood Disorder of moderate intensity, together with Substance Abuse Disorder.  You also exhibit some anti-social and criminal traits that have contributed to you acting out intermittently. 
Mr Mackinnon opines that these conditions appear to have (at least much of) their origins in your unhappy and unstable childhood, marked by the lack of a cohesive family unit, absence of a father figure, poor relationship with your mother and her partners and changing living circumstances.

36Your mother has visited you whilst you have been in custody and has spoken of your good qualities, including the care you gave to your grandparents and also to your son before you lost custody in 2016. 

37You have also been spoken highly of by Ms Geertruida Nikkelson, the person you have stayed with for the past two years.  Ms Nikkelson has described you, amongst other things, as a perfect gentlemen who would do anything for anybody.

38In mitigation, I have taken into account the matters urged on your behalf by your counsel, including:

·     your longstanding mood and substance abuse disorders, including chronic alcohol abuse;

·     your qualities as expressed in the character references;

·     that your offending was not attended by any threats or any violence;

·     your prospects of rehabilitation, which I assess as quite favourable if you are able to manage your alcohol abuse;

·     your dislocated childhood experience; and

·     that in the years immediately prior to this offending you had been struggling to cope with several big events in your life, including the death of your grandparents, quite serious physical injury - and that in the context that your usual work is as a physical labourer - and that you were being medicated for depression and anxiety.

39The charges, however, of rape are obviously serious.  The victim was understandably offended and was clearly resistant to your sexual advances.  Your penetrations were repeated and you persisted despite multiple requests to stop.  There were two distinct periods of offending separated by an occasion, albeit for a short period, when the victim left the airbed and went outside.  Your drunkenness cannot be accepted as any excuse.  Principles of general and specific deterrence and denunciation by the court are prominent sentencing considerations.

40Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on two sexual offence charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.

41This means that the sentencing task in respect of Charges 3 and 4 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose sentences may be imposed longer than that which is proportionate to the gravity of the offence in the light of its objective circumstances.  However, because of the circumstances and mitigating factors in your case, I do not propose to do so.

42Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charges 3 and 4 the sentences I impose are to be served cumulatively.  Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered. 

43I note here that the prosecution did not call for a disproportionate sentence or for the cumulation contemplated by either s.6D or s.6E of the Sentencing Act.

44Mr Emmerson, would you please now stand.

45On Charge 1 of rape, you are convicted and sentenced to four years' imprisonment. 

46On Charge 2 of sexual assault by compelling sexual touching, you are convicted and sentenced to 12 months' imprisonment. 

47On Charge 3 of rape, you are convicted and sentenced to four years' imprisonment. 

48On Charge 4 of rape, you are convicted and sentenced to five years' imprisonment.

49Charge 4 is the base sentence. 

50I direct that six months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 4. 

51The total effective sentence is five and a half years' imprisonment. 

52I direct that you serve a minimum period of four years' imprisonment before being eligible for parole.

53Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of
35 days, not including today, be reckoned as time already served under this sentence and I direct the fact of this declaration and its details be noted in the records of the court.

54There is a further matter to which I need attend - you may be seated for the moment.

55The offences of which you were found guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004, and by reason of your being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.

56Pursuant to s.50 of that Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.  I am also required to inform you of the length of your reporting period, which in your case is for 15 years.

57My associate will shortly hand to you the Notice of Reporting Obligations form, which I have already signed.  Your representative in court today, Mr Stefanovic, will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you and you read it and understand it, to sign the Acknowledgement that you have received the Notice and then return the Acknowledgement to my associate. 

58Those registration materials can now be passed please to Mr Stefanovic for passing in turn to Mr Emmerson.

59MR STEFANOVIC:  Your Honour, might I approach the dock?

60HIS HONOUR:  Yes, of course.

61MR STEFANOVIC:  Thank you.

62HIS HONOUR:  It's all done?  All right.  Mr Stefanovic, there was a note on the previous orders, because Mr Emmerson wasn't getting the appropriate medication.  Has that all sorted itself out?

63MR STEFANOVIC:  I'm told the powers that be are aware of it, but nothing's actually happened.

64HIS HONOUR:  What, he still hasn't got ‑ ‑ ‑

65MR STEFANOVIC:  Yes.

66HIS HONOUR:  ‑ ‑ ‑ the medication?

67OFFENDER:  No.

68MR STEFANOVIC:  No.

69HIS HONOUR:  All right.  Well, there are custody officers present in court.

70PRISON OFFICER:  Yes, sir.

71HIS HONOUR:  There is a note on the order that there are custody management issues.  Mr Emmerson does suffer from a serious back condition for which he is medicated, and also the mental health issues.  So the requirement for him to get appropriate medication must be complied with.

72PRISON OFFICER:  Yes, Your Honour, we'll pass that on ‑ ‑ ‑

73HIS HONOUR:  So if you can pass that onto the responsible authorities back where Mr Emmerson is immediately being returned to now.

74PRISON OFFICER:  Yes, Your Honour.

75MR STEFANOVIC:  Your Honour, if I must just assist there, the record of order made the other day, on Wednesday, did have that noted and I ensured that went in his property downstairs in the cells and I explained it over the counter the staff there.  So ‑ ‑ ‑

76HIS HONOUR:  All right, well, there's nothing more I can do than to have those matters recorded on the order.

77MR STEFANOVIC:  Yes.

78HIS HONOUR:  And no doubt you can assist again in reminding the personnel that that has to be complied with.  All right, well that will be noted on the order.

79MR STEFANOVIC:  Thank you, Your Honour.

80HIS HONOUR:  Same as last time.

81MR D'ARCY:  And would Your Honour make the forfeiture order.

82HIS HONOUR:  Yes.  At the plea hearing, the Crown sought a forfeiture order to which you consented and I have made that order today.  Is there anything else from either counsel?

83MR D'ARCY:  No, Your Honour.

84MR STEFANOVIC:  No, Your Honour.

85HIS HONOUR:  Well, Mr Emmerson, I sincerely hope you can apply yourself particularly to your alcohol issues when you're in prison.  It seems to me from the material here that if you can get over that you're going to keep out of trouble. So you'll get some time to work on that.  Seek all the assistance you can get whilst you're in custody.

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